If you don’t really want the answer, don’t ask the Supreme Court

The Supreme Court replied to the Harper government Friday: Since you asked, the answer is no, you can’t.

No, you can’t change the method of selecting Senators, or introduce term limits, without a constitutional amendment through the ‘7/50’ general amending formula requiring the consent of Parliament and seven provinces representing at least 50 per cent of the population.

And, no you also can’t simply abolish the Senate without the unanimous consent of the provinces. Don’t even think about it, said the Supremes, who were themselves unanimous in knocking down the questions put by the government in the Senate reference case.

In doing so, the High Court interpreted as never before the intent of the Fathers of Confederation in the British North America Act, now styled the Constitution Act, 1867. In the U.S., they would call this ‘framers’ intent’.

“The Senate is one of Canada’s foundational political institutions,” the Supremes wrote. “It lies at the heart of the agreements that gave birth to the Canadian federation.”

In other words, the framers’ intent for Canada’s bi-cameral legislature was that the House of Commons would be an elected body, while the Senate would be an appointed one, free of short-term political pressures.

The judgment noted that introducing “consultative elections for the nomination of senators would change our Constitution’s architecture, by endowing senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary chamber of sober second thought.”

Then they said it again, referring to the Senate as “a complementary legislative body rather than a perennial rival to the House of Commons.”

That the Senate has taken a reputational hit in the expenses affair is hardly relevant to the Court. They’re telling us how the Fathers of Confederation envisioned the Senate’s role. That it was an appointed rather than an elected chamber “was not an accident of history.”

And in that regard, the Supremes are strict interpreters of the Constitution.

For example, the government thought it had leeway to impose term limits of eight or nine years, based on the 1965 precedent of senators taking mandatory retirement at age 75, where previously they had been appointed for life. Parliament acted alone on that.

Nope, said the Supremes. It’s a ‘7/50’.

The role of the Supremes is to interpret the Constitution, not to re-write it. Nor is it the Court’s problem if the Senate is seen as a dysfunctional body.

Consultative elections for Senate nominees? Sorry. Also a ‘7/50’.

This is interesting in that Alberta has had consultative elections since the late 1980s, asking voters their preferential choice for the Senate in the event of vacancies. Alberta’s first “elected” senator was Stan Waters, though he was appointed by Brian Mulroney in 1990. Subsequently, the Chretien and Martin governments declined to appoint Alberta ‘senators-in-waiting’ and it wasn’t until Stephen Harper came to office in 2006 that Alberta got its next ‘elected’ senator in 2007. Last year, Harper appointed two more ‘elected’ senators from Alberta, Doug Black and Scott Tannas.

Alberta is, of course, the heartland of the Triple-E Senate movement. Since the time of Preston Manning and the Reform Party, Alberta has called for a Senate that is ‘equal, effective and elected’. None of which is in the offing, certainly not after the Supreme Court ruling.

So what now for advocates of an elected Senate?

“Significant reform and abolition are off the table,” Harper said. “I think it’s a decision that I’m disappointed with. But I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.”

Canadians, he said, were “stuck with the status quo.”

In a way, the Court has taken Harper off the hook on the issue of Senate reform. He can simply shrug and say, “What can you do?”

Nothing.

It’s not Harper’s style to call a First Ministers’ conference, let alone one to discuss the Constitution.

And in the event he ever did, it wouldn’t be limited to Senate reform. Quebec would show up with its agenda, with the ghosts of Meech Lake. First Nations would have to be there, too.

And even if there were an agreement on the Senate and other issues, there’s a three-year period for constitutional amendments to be ratified by provincial legislatures. Which is how Meech Lake died in 1990, when the Manitoba and Newfoundland legislatures let the three-year clock run out.

None of which is the Supreme Court’s problem. The role of the Supremes is to interpret the Constitution, not to re-write it.

Nor is it the Court’s problem if the Senate is seen as a dysfunctional body, or one in danger of falling into disrepute.

And if you don’t want them to settle a constitutional question, don’t ask.

L. Ian MacDonald is editor of Policy, the bi-monthly magazine of Canadian politics and public policy. He is the author of five books. He served as chief speechwriter to Prime Minister Brian Mulroney from 1985-88, and later as head of the public affairs division of the Canadian Embassy in Washington from 1992-94.

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.

Interesting op-ed, Mr. Macdonald … but it doesn’t answer some questions:
“There were minor changes in 1965, when the mandatory retirement age for new senators was set at 75 years and, in 1982, when the Senate was given a qualified veto over certain constitutional amendments.” [from Wiki article on Senate]
• Why were those changes proposed by other governments “constitutional” whereas those proposed by the Harper government — term limits and appointment process — are not?
• Isn’t the “interpretation” of the constitution subject to the POV of the sitting members of the SC? Is it possible that in a few years’ time, with different judges sitting, the SC’s “interpretation” may change?
• Why is most commentary on the SC decision being described exclusively as a loss for PM Harper? The SC also said a flat no to Tom Mulcair’s abolition project. And the appointment process advocated by Justin Trudeau — an unelected committee appointing senators rather than the sitting prime minister — strikes me as even more “undemocratic” than a sitting prime minister’s appointments.

Exactly!. Harper is off the hook and I suspect he is glad the whole discussion is over. Mulcair loses because it cannot be abolished without everybody and their dog agreeing. So he will need to change his talking point. Trudeau is happy with the status quo. He “expelled” his Senators from the caucus etc. but nobody believes for a moment they are not still taking their marching orders from Trudeau. When I see Liberal Senators siding with Conservative Senators on a bill then maybe just maybe we can believe there is some real changes taking place.

Harper got the answers to his questions, and his conclusion is that change is too hard to even bother trying.

It’s Toooooo Haaaaaard!

Harper’s quitting before he even starts. He was also a quitter in the 2004 election: He rode his campaign bus home, sulking, while Paul Martin was busy crossing the nation with campaign stops along the way.

In 2004, Paul Martin won. Harper, the sulking quitter, lost.

I didn’t intend to vote for a quitter.

Maybe Harper just wants to get through the next election then quietly retire. Join some Boards of Directors and give a few speeches. Write a book, maybe.

He has his legacy:

– a few token import tax cuts for kid’s sports equipment

– a few percentages knocked off of income tax

– a drop in military spending as a percentage of GDP, while still claiming to support national defense

– changing the title of the ‘federal budget’ to ‘Canada’s Economic Action Plan’.

What – exactly – is wrong with holding a national referendum during the 2015 federal election to find out what taxpayer’s think about abolition of the corrupt, unaccountable and undemocratic retirement home of Liberal and Conservative patronage for their hacks and flacks?
Surely in 21st Century Canada the people’s will is more important than that of the political-corporate-media elites that buttress the Liberals and Conservatives!